Illegal workers penalties set to triple: Employers must perform right to work checks

The Immigration (Employment of Adults Subject to Immigration Control) (Maximum Penalty) (Amendment) Order 2024 presented to Parliament on 23^rd January has been passed and will take effect on the 13^th February 2024.

Its purpose is to increase the maximum penalty which may be imposed by the Secretary of State on an employer who employs an adult without permission to work in the UK. This means that it’s more important than ever that employers perform right to work checks.

Following  the announcement in August last year, the Civil Penalty an employer will now face will rise from £15,000 to £45,000 for an initial breach of control and an increase from £20,000 to £60,000 for repeated breaches.This will cause employers considerable difficulties should they fail to carry out full and rigorous right to work checks or ensure that right to work policies are up to date and operations are fully compliant with the new requirements.

The new Code of practice on preventing illegal working: Right to work scheme for employers, also comes into effect on the 13^th February and this version of the code should be applied to all right to work checks from this date, including where a follow up check is required to maintain a statutory excuse, even if the initial check was undertaken using a previous version of the code which was current at the time.

The code sets out the procedures to be followed by all employers in ensuring full compliance and includes:

• How an employer may establish a statutory excuse against liability for an illegal working penalty;
• An overview of the process under which the civil penalty regime is administered; and
• How liability of determined and how the penalty amount is calculated.

Any employer issued with a penalty notice on or after 13 February 2024 will be subject to the penalty calculations in the new code of practice unless the illegal working identified in the notice ceased on or before 12 February 2024. This includes the maximum £45,000 civil penalty being imposed for a first breach of the scheme and a maximum of £60,000 per illegal worker for repeat breaches. Conducting regular right to work checks is critical for employers to avoid being faced with these penalties.

What steps should employers take to mitigate the risks of a penalty?

It is imperative that employers act now to fully review their right to work policies, systems and procedures to ensure that all HR staff responsible for recruitment are fully compliant with Home Office guidance. Employers should ensure that their staff are properly and fully versed in what is required of them and that there is ongoing training provided. This may seem a fairly routine undertaking but the slightest error, even where an incomplete copy of a relevant document is concerned, can suddenly expose the employer to a civil penalty.  If in any doubt, take specialist immigration and employment advice.

We can offer routine training and right to work policy and guidance notes as well as offering soft audits and training . Please get in touch with our Immigration team either directly to known team members or generally at immigration@burnesspaull.com